FKB’S MICHAEL FURMAN AND SHARI SCKOLNICK OBTAIN DISMISSAL OF A LEGAL MALPRACTICE CLAIM IN SUPREME COURT, RENSSELAER COUNTY, STEMMING FROM AN ACTION FOR AN ENCROACHMENT.

10/9/2019

FKB’ s  Michael Furman and Shari Sckolnick successfully obtained a judgment dismissing a legal malpractice complaint from Judge McGrath in Supreme Court, Rensselaer County.

This legal malpractice action stemmed from a law firm’s defense and representation of plaintiffs in an action where plaintiffs’ neighbor sued plaintiffs because their building and utilities encroached onto the neighbor’s property.  The law firm, on behalf of the plaintiffs, asserted counterclaims alleging that the plaintiffs previously acquired the subject property through adverse possession and that the plaintiffs were entitled to a prescriptive easement. 

After a two-day bench trial, the Court issued a decision finding that the plaintiffs were liable for encroachment and trespass onto their neighbor’s property. The Court also found that the plaintiffs’ counterclaims for adverse possession and a prescriptive easement were without merit.

Thereafter the plaintiffs commenced a legal malpractice action against the law firm alleging that had the law firm objected to hearsay testimony offered by a witness at trial and called an additional witnesses at trial, the Court would have reached a different conclusion.

In FKB’ s motion to dismiss, FKB successfully argued that since the underlying action involved a non-jury bench trial, it is presumed, as a matter of law, that the Judge considered only competent evidence in reaching his decision and that the appropriate amount of weight, if any, was given to the hearsay testimony which was not objected to.  The Court also agreed with FKB’s argument that the Judge’s written decision after the bench trial served as documentary evidence to show that the Judge based his decision upon other cumulative evidence offered into evidence at trial and the plaintiffs could only speculate that had the law firm objected to certain testimony or called an additional witness that the Judge would have reached a different result. Lastly, the Court also agreed with FKB’s argument that the law firm’s decision not to call a witness at trial was a reasonable trial strategy in light of the fact that her testimony would have done more harm than good.

If you have any questions about this decision, or the defense of attorneys in general, please contact Michael Furman or Shari Sckolnick .

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